On March 12, 2018, U.S. citizen children, their non-citizen parents, and other non-citizen adults filed this class action lawsuit against the U.S. Department of Homeland Security (DHS). The plaintiffs challenged DHS’ new rule for determining whether or not to end Temporary Protected Status (TPS) designations for immigrants from countries facing various crises warranting their nationals to stay in the U.S. rather than be returned home. The plaintiffs argued that the new DHS rule violated their rights under the Fifth Amendment and violated requirements set out by the Administrative Procedure Act (APA). They sought declaratory and injunctive relief. This case was filed in the U.S. District Court for the Northern District of California and assigned to Judge Edward M. Chen.

As the complaint showed, TPS is a formal mechanism by which individuals from designated countries can legally stay and work in the U.S. when their countries are facing armed conflict, natural disaster, or other extraordinary circumstances making it untenable for them to return. Breaking from previous administrations’ practices, the Trump administration adopted a rule in assessing whether to continue TPS status that allowed it to ignore consideration of any new crises that emerged since TPS status was granted. The complaint argued that new DHS rule threatened more than 200,000 individuals with the risk of losing their right to legally work and live in the U.S. Thus, the complaint argued that over 200,000 U.S. citizen children faced the choice of being separated from their families or leaving the only home they had ever known. Moreover, the complaint highlighted President Trump’s various past statements to argue that the new rule was motivated by racial animus.

Plaintiffs were a combination of children who were U.S. citizens, their non-citizen parents with TPS status, and other adults with TPS status. The plaintiffs also sought to represent the following class: “The U.S. citizen children, from ages five to eighteen, of all TPS holders from El Salvador, Haiti, Nicaragua, and Sudan.”

DHS moved to dismiss the case, which the court (Judge Chen) denied on June 25, 2018 (2018 WL 3109604). The court held that it had jurisdiction to hear the case because, although the courts were limited in reviewing TPS designation determinations, this case did not challenge a particular determination but rather a broader policy. The court also held that the APA claim stood because DHS had not provided any reasoned explanation for the new rule as required under the APA. The court maintained the Fifth Amendment equal protection claim based on the plaintiffs' racial animus argument, holding that the Fifth Amendment barred racial discrimination in the immigration setting regardless of how much deference the executive branch normally received on immigration matters. Finally, the court maintained the due process claim because the APA and equal protection claims were sufficiently pleaded.

The plaintiffs then moved for a preliminary injunction, which the court (Judge Chen) granted on Oct. 3, 2018 (2018 WL 4778285). The court held that the plaintiffs would suffer irreparable harm, including family separation and being forced to move back to countries where neither the children nor adults had any remaining ties. Moreover, the court held that the U.S. economy itself would be hurt if thousands of TPS status holders were suddenly removed. The court found that DHS had not provided any justification for its new rule, and that if anything, the rule was implemented out of racial animus and to effect the administration's pre-determined outcome to terminate TPS status. Subsequently, DHS appealed the decision to the Ninth Circuit, which assigned the appeal case number 18-16981.

The case is ongoing.

Virginia Weeks - 10/21/2018


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